Wills in Spain: basic question

Information and questions about the Law in Spain and Andalucia.
aaronsm
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Wills in Spain: basic question

Postby aaronsm » Tue Jun 28, 2011 2:59 pm

Greetings!

Can a person fitting the following profile write and register a Will (Certificado de Actos de Última Voluntad) in Spain?

—- has acquired (permanent) residence in Spain;
—- possesses overseas nationality (and travels on overseas passport);
—- pays taxes, contributes to Social Security, and works in Spain AND
—- has bank deposits, retirement accounts and other financial holdings in Spain but no real estate property

Thanks!

julian
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Re: Wills in Spain: basic question

Postby julian » Tue Jun 28, 2011 3:45 pm

yes, but you should also have a will in your own country of nationality to cover anything in that country

aaronsm
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Re: Wills in Spain: basic question

Postby aaronsm » Tue Jun 28, 2011 5:23 pm

got it, thanks Julian!

Aaron

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Re: Wills in Spain: basic question

Postby Beachcomber » Tue Jun 28, 2011 5:25 pm

Anyone with assets in Spain may make a Spanish will. Nationality, residential and work status have no bearing on the matter.

aaronsm
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Re: Wills in Spain: basic question

Postby aaronsm » Tue Jun 28, 2011 6:23 pm

Thank you, Beachcomber!

A couple of related questions:

(1) do the Spanish laws of succession apply for all kinds of property,
or, are there different laws for movable (e.g., financial instruments) and immovable (i.e., real estate) property?

(2) in the (provable) absence of a Will registered in Spain, do the Spanish laws honour the laws of the original country of domicile/citizenship?

The reason for my question is that I have heard of "lex situs" and "lex domicile" principles governing inheritance of assets. The former principle honours the jurisdiction in which the property is situated. The latter honours the law of the country of domicile (interpreted as original nationality).

I am asking from the perspective of a foreign national resident in Spain, deceased in country of birth/citizenship, with possibly no will registered in either country, with financial assets in Spain.

many thanks!

Beachcomber
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Re: Wills in Spain: basic question

Postby Beachcomber » Tue Jun 28, 2011 10:51 pm

A Spanish will does not specify the property, it just refers to wealth, rights, assets and shares.

Whilst a foreigner with assets in his country of nationality may make a Spanish will according to the law of that country any disinherited issue with the wherewithal and the funds could challenge the will in a Spanish court and win.

If the assets of the deceased person are substantially or wholly located in Spain the Spanish law of forced inheritors will be applied.

aaronsm
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Re: Wills in Spain: basic question

Postby aaronsm » Tue Jun 28, 2011 11:56 pm

Thank you again, Beachcomber. Very helpful.

The case I am concerned with involves a deceased male who has/had no childern.

His (financial) holdings in Spain form a small part of his total assets, most of which are located in his home country.

The laws of succession that get invoked in his case (in his home country and potentially, in Spain as well) are those of intestate ("abintestado") successesion, since he left no will in either his country or in Spain.

He is survived by his wife/widow and both of his parents.

A key divergence between intestate succession laws in his country and in Spain seems to be the following: his home country designates the widow and mother as equal heirs, with no allocation to the surviving father. I get a sense that such is not the case in Spain.

Therefore, it is quite relevant for me to know which country's succession laws will be applied in Spain for the liquidation of his financial holdings.

One last question: the person in question died in 2005. Till today, nothing has been done formally towards liquidation of his assets in Spain. It took us so long just to find out that he indeed has/had holdings in Spain to liquidate! Is the lapse of time (nearly 6 years) an issue now?

Thanks!
Last edited by aaronsm on Wed Jun 29, 2011 12:21 am, edited 1 time in total.

Beachcomber
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Re: Wills in Spain: basic question

Postby Beachcomber » Wed Jun 29, 2011 12:19 am

My own opinion would be that the succession law of Spain would be enforced and that the spouse of the deceased would be the sole inheritor as there is no specific provision for parents under the law of forced inheritors.

Regarding your last paragraph, it is my understanding that as a period of more than four years, six months and a day has passed since the death the payment of inheritance taxes will be proscribed.

As you are a new member I just want to make it clear that I am not a lawyer and that my information is based solely on what I have found out for myself having lived here for a number of years.

Sid (El Cid) knows more about these things than I do and hopefully he will be able to confirm or clarify my thoughts.

aaronsm
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Re: Wills in Spain: basic question

Postby aaronsm » Wed Jun 29, 2011 1:21 am

Thank you again Beachcomber!

I make due allowance for your not being a lawyer, but the clarity and informativeness of your postings are certainly invaluable.

Actually, if Spain applies the law of forced inheritors in my case of interest in the manner you surmise, it will work personally in my favour!!

I'll be definitely keen on what El Cid has to say on this matter.

Bye for now,
Aaron

aaronsm
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Re: Wills in Spain: basic question

Postby aaronsm » Wed Jun 29, 2011 1:36 am

Beachcomber wrote:Regarding your last paragraph, it is my understanding that as a period of more than four years, six months and a day has passed since the death the payment of inheritance taxes will be proscribed.


I suppose this proscription, in retrospect, is another minor benefit to the person I am helping to liquidate her late husband's holdings (if you disregard the fact that if she had paid taxes and liquidated earlier, she could have invested the same amount perhaps more profitably :-)

I also presume that tax authorities in Spain (as indeed those everywhere else) will be looking for alternate methods to bring her into the tax system and inflict some kind of tax on her inheritance...

Cheers.

El Cid
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Re: Wills in Spain: basic question

Postby El Cid » Wed Jun 29, 2011 7:27 am

I would agree with what Beachcomber said - Spanish inheritance rules would apply.

However the rules for intestacy are different.

If there are children they get it all.

If there are no children the parents and grandparents get it.

If there are no children and no surviving parent then the spouse gets it.

If there is no spouse, children or parents it goes to siblings.

If no siblings it goes to cousins.

If no cousins it goes to the state.

As for the IHT and the four year rule, the tax authorities can overturn that if they consider that they were not informed of the death for fraudulent reasons - ie. to deliberately avoid tax.

aaronsm
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Re: Wills in Spain: basic question

Postby aaronsm » Wed Jun 29, 2011 1:47 pm

Thank you, El Cid!

aaronsm
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Re: Wills in Spain: basic question

Postby aaronsm » Wed Jun 29, 2011 4:29 pm

El Cid wrote:I would agree with what Beachcomber said - Spanish inheritance rules would apply.


I am trying to uderstand the conditions that trigger applicability of Spanish law (in the place of foreign law).

The intestate succession law that you quote is certianly applicable (to my knowledge) to Spanish nationals for properties in Spain.

The case on my hand is that of a deceased foreign national and foreign inheritors for movable (financial) holdings in Spain, with no will in either country.

In the country of nationality of the deceased, the law of intestate succession gives 50% each to the spouse and surviving mother, even for assets held abroad.

The critical thing for me to know is whether Spanish law of intestate succession for a foreigner and foreign inheritors (of movable assets in Spain) refer to the foreign jurisdiction or not.

A cursory reading of http://www.elnotario.com/egest/noticia. ... cion_ver=0 seems to indicate to me that the foreign laws are invoked. Correct me if I am wrong...

Thanks!

El Cid
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Re: Wills in Spain: basic question

Postby El Cid » Wed Jun 29, 2011 5:37 pm

aaronsm wrote:

A cursory reading of http://www.elnotario.com/egest/noticia. ... cion_ver=0 seems to indicate to me that the foreign laws are invoked. Correct me if I am wrong...

Thanks!


It's a complex subject and I can only advise you on what the succession rules are in Spain.

Whether Spanish law or foreign law applies may well depend on the laws of the foreign country - I can't comment on that.

I think Beachcomber and myself have exhausted our knowledge base and you really should consult a lawyer for a definitive answer.

Sorry I can't be of further help.

Sid

aaronsm
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Re: Wills in Spain: basic question

Postby aaronsm » Wed Jun 29, 2011 6:02 pm

You both (Beachcomber & Sid) have been very helpful,

Apart from the question of jurisdiction of law (Spain vs foreign country), you have also shed light on the 4.5 year timeframe for collecting inheritance tax-- I wasn't aware of that.

I will get legal help as I move forward with the effort.

Thanks a great deal,

Cheers.

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DavidSearl
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Re: Wills in Spain: basic question

Postby DavidSearl » Thu Jun 30, 2011 11:43 am

FROM DAVID SEARL

FOR AARONSM, EL CID AND BEACHCOMBER

My goodness, Aaronsm, you are getting a good deal of sound advice here from El Cid and Beachcomber.

Let’s try to keep it simple.

1. A foreign national with assets in Spain, either real estate or movable assets, dies without a will. He is an official resident of Spain.

2. As he has assets in his home country and dies there, his estate is adjudicated there and is distributed to his inheritors under the terms of his national law when a person dies without a will.

3. Now we discover that more assets exist in Spain. The proven inheritors must now prove to the Spanish authorities that they are the legal inheritors, according to their own national private law.

4. Once they have done this, and paid the Spanish inheritance tax on the estate, (or not, after four years, six months and a day) they can take possession of the assets.

5. It is true that, in the absence of any will or court decision from another country or any sort of legal activity, that the Spanish authorities will distribute the assets according to Spanish law, as set out by El Cid. What else could they do? Especially if the deceased is an official resident.

6. However, when it is proved to them that legal inheritors exist by virtue of court decisions in the home country of the deceased, they will honour those decisions.

7.Good luck with it.


DAVID SEARL
You and the Law in Spain

aaronsm
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Re: Wills in Spain: basic question

Postby aaronsm » Thu Jun 30, 2011 7:23 pm

Brilliant & crystal clear, David!

Couldn't have come up with a better summary of the state of affairs.

A somewhat poignant aspect of the story here is that the deceased and his wife (both Spanish permanent residents at that time) left Spain on a home country trip, where, a few feeks later, he was diagnosed with a terminal illness that consumed him 8 months later. Though their original intention was to return to Spain after their trip (which is why bank holdings were left there as is), they stayed abroad for well over 6 months, and consequently (I assume), ended up forsaking residential rights in Spain. The wife/widow never tried returning to Spain, since her only familial anchor there was her (now late) husband. The husband's parents have always lived in their home country and never been in Spain. The surviving inheritors are not terribly conversant with international procedures and paperwork (especially involving multiple languages), and I am trying to do my best to help them out as a close relative. Many thanks to you all.

aaronsm
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Re: Wills in Spain: basic question

Postby aaronsm » Fri Jul 22, 2011 3:02 am

Hello everyone,

I have a simple follow-up question after all the helpful answers you gave me a few weeks ago.

Regarding the proscription of inheritance tax that Beachcomber pointed out:
"... ... it is my understanding that as a period of more than four years, six months and a day has passed since the death the payment of inheritance taxes will be proscribed."

my question: does this proscription apply only to properties/assets of the deceased (such as real estate or financial holdings), or does it also apply to inheritance tax on any life insurance claim amounts liquidated from the policy of the deceased?

Many thanks,
aaron


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